How to Protect Civil Rights in Schools Without a Department of Education: Kenneth Marcus

despite Decades of the US Department of Education we're not doing any better in educating our students if anything we're now doing worse as part of our special series on the US Presidential transition period I'm sitting down with kenth L Marcus assistant Secretary of Education for civil rights in the last Trump Administration he's the founder and chairman of the Lou D brandise Center for human rights under law I think the question is how the American people can best be served the goal shouldn't be to preserve jobs of bureaucrats the goal shouldn't be to preserve the status quo we should ask how can we best serve students in their families 2024 is an important year for uh civil rights in a lot of different ways this is American thought leaders and I'm Yan Kell Kenneth Marcus such a pleasure to have you on American thought leaders pleasure is mine good to be with you so Ken you ran the office of civil rights in the Department of Education um you've investigated thousands of cases why don't you tell me what does the office of civil rights do sure I'd be happy to um it's called OCR the US Department of education's office for civil rights and IT addresses discrimination on the basis of race color national origin age sex discrimination even certain patriotic youth organizations and it does so to ensure that federal funds are not used by schools colleges or universities in ways that facilitate discrimination against minority groups well and how important is this the function of this department in your view sort of in in retrospect having been deep deep in it it is a a agency that affects students and families around the country anyone who's ever been a student in a public elementary or secondary school or college or university is protected in some sense by this agency uh when it acts well it protects uh vulnerable populations against discrimination and harassment when it acts badly it can facilitate other sorts of problems like the so-called kangaroo courts in colleges and universities under uh sexual harassment or uh assault cases uh it's a fairly big Agency for one that some people have never heard of this past year reportedly it had 20,000 complaints uh from around the country ranging from race discrimination to language discrimination issues to disability cases and anti-Semitism cases which is a subject that I've worked on for many years so there's been discussion actually of dismantling the Department of Education entirely um so what would be the impact presumably this office would also disappear what would be the impact of that well if the department is closed as president Trump has supported and as I personally think is a good idea it could be closed in lots of different ways under some proposals OCR remains uh an agency but is moved to another department like the Department of Justice in other permutations it might be changed in various ways or reduced used I haven't yet seen a proposal under which it's eliminated alog together depending on how it's addressed it might be the same or it could even be better for example if it handles fewer cases but those cases it does handle are addressed not through the administrative state but through the courts in a way that would might have more impact on the most serious cases give me an example of uh where the agency functions well according to how you just described it so I would say that during the Trump Administration under the Trump executive order on combating anti-Semitism the agency sent a strong signal that institutions can't use double standards and that they need to address discrimination against Jewish students the same as discrimination against uh other sorts of groups there have been other ways in which it's acted well during the George W Bush Administration I had the honor of overseeing a enforcement initiative that addressed misidentification of certain racial and ethnic minorities in special education programs that were not appropriate uh to their learning and their uh in their conditions sometimes the agency gets it right and is able to provide students and their families with an environment which is equal to those of other groups sometimes it can be heavy-handed and inappropriate the case that you described under George W bush that's where uh students were being you know basically students who had were fully functional but just I guess illiterate were being classified as having special needs or something like this or so for those of us who remember the George W Bush Administration you might recall that President Bush was very big on reading issues and on providing research-based reading instruction in the public schools as opposed to some of the more more politicized approaches to reading that weren't working now civil rights agencies don't teach people how to read but what we were finding is that there were some schools where inappropriate and ineffective reading programs were leading to high literacy rates disproportionally among racial and ethnic groups some of those racial and ethnic groups who were not being properly taught on reading were then in some ways injured twice uh first by not getting the best kind of reading instruction and then they were uh misidentified as being either mildly um mentally in some cases or as otherwise uh mentally disabled in ways that just weren't true and because of that they were denied educational benefits that were appr apprpriate to who they were the problem wasn't with the kids the kids were fine the problem was with the grown-ups who were Mis educating them leaving them un uneducated and then giving up on them thinking that they couldn't be taught simply because they were being taught badly and then pushed aside into a special education program that was just wrong for them my sense is that this sort of situation has actually only gotten worse since those years what's your view um some of the data shows Improvement um but uh schools uh vary um certainly during covid uh closure of the schools led to all sorts of problems especially among uh those people who were um perhaps poorer uh or in certain minority groups uh there is a whole generation that is just now recovering from not just covid but from the rush to close the schools down in the uh in the wake of Co beyond that despite Decades of a US Department of Education we're not doing any better in educating our students if anything we're now doing worse we're denying an appropriate education and denying choices that families should have as to how to educate their uh their kids so give me an example then when when the department doesn't function well again pray your description earlier uh well for example when it misuses a so-called disperate impact approach to civil rights that's a notion at least as it's often misused that says we shouldn't just ask whether students are treated differently based on their race or national origin we should also ask apart from intentional discrimination whether there are neutral approaches to education that have an adverse impact on some groups so if you if you find out and this is always the case that approaches have statistical uh deviations that uh it might be that in a particular School uh African-Americans might be suspended more often than let's say asian-americans if you find out significant statistical disparities it's possible that there is intentional discrimination at work and it's worth investigating to find out whether students are being intentionally treated differently based on their race but if you don't bother to do that and you just say it's bad to have statistical discrepancies we won't suspend African-Americans until we have an equal uh percentage of asian-americans who are also treated in that way some there are all sorts of problems that arise from that and some of the problems involve principls and teachers who are just unwilling to discipline students who are causing problems and that leads to safety issues for everyone including often minorities within the public schools yeah I know I'm remembering there was one particular you know student Mass shoting situation which was a student that just had kind of repeatedly there had been repeated attempts at disciplining at repeated attempts at solving but just kind of kept falling through the cracks presumably because of this sort of an approach of course when there is a mass shooting that's an extreme case um and then there's often a debate within the public as to the cause of that shooting including whether it is part of a general problem of students made unsafe as a result of a misuse of civil rights laws um regardless of whether particular case you can actually come to the ultimate truth or not it really is the fact that across the board we have to worry about Educators that are focused Less on education and more on keeping the the federal bureaucrats and federal enforcers at Bay in ways that could uh tie their hands reduce their judgment and ultimately make the students less safe Ken we're going to take a quick break right now and we'll be right back and we're back with Kenneth Marcus chairman of the Lou brandise Center for human rights under law so you mentioned this term a disperate impact and that makes me think of diversity equity and inclusion or Dei initiative so how how big has that I guess approach uh to dealing with har you know perceived harms been in this OCR Department uh agency it's become very significant and problematic now listen when people talk about Dei or diversity equity and inclusion they mean different things those people who support Dei are sometimes talking about compliance with anti-discrimination law that's a good thing generally speaking if there are disabled students who lack access to the bathrooms for goodness sake we should give them access and that is sometimes a matter of compliance with the uh Ada the disabilities law if there are uh girls who are treated unequally um in um in their schooling uh we should address that um on the other hand what we're really talking about I think when we criticize Dei is a speciic specific approach to anti-discrimination which has very quickly in the last few years become something of a dominant Orthodoxy which is difficult even to question without being challenged why are you questioning Dei what are your motives but the fact is that Dei often reduces the complexity of human behavior to Binary oppositions it asks everyone are you an oppressor or are you an oppressed are you white supremacist or are you bip bipo black indigenous and persons of colors when you divide the world that way you pit people against each other and it can lead to stereotypes racial stereotypes that are harmful that create social tensions that create divisions and sometimes lead to exactly the kinds of racial discrimination that they're intended to undermine often times we talk to Jewish students in the schools and ask them does the does the Dei office help you occasionally they'll say yes mostly they'll say no sometimes they'll say it makes things worse it makes things worse by treating us as members of a hyper white privileged group that don't deserve the same treatment as everyone else well it seems to me that that is the opposite of what our civil rights laws are intended to promote what they're intended to promote I believe is equal treatment and unity not different treatment and divisiveness well so obviously this makes me think of the work that you've done around title six and maybe so why don't we actually start with you explaining what title 6 is and and and the work that you did related to it sure uh title 6 is part of the Civil Rights Act of 1964 which you know is the first major Civil Rights statute created during the Civil Right period there had been a few smaller acts passed during the 1950s but really since the 19th century uh 14th Amendment and the civil rights laws of the of the 19th century this was the first statute that was intended to address racial segregation in the public schools and other forms of serious discrimination the notion was we will tell schools colleges universities and any other institution that receives federal funds that if you have programs and activities that are fed that are federally funded you may not discriminate against your recipients your beneficiaries on the basis of race color or national origin and this statute was used title six which I just describ of the Civil Rights Act of 1964 was used in order to try to break down the racial segregation that continue to persist in many parts of the country even years after Brown versus Board of Education which had held that racially segregated schools are unconstitutional that same statute continues to be used not just to address segregation but to address other forms of discrimination and harassment on the basis of race color or national origin so well so tell me about what I think is colloquially called the Marcus Doctrine sure um that term is is is used it's uh I guess flattering uh um to me it's used to describe the notion um which I had developed about 20 years ago during the George W Bush Administration that if you face discrimination based on your membership in a group that has a shared ethnic or racial or ancestral background but also a shared religion or faith you will receive from the government the same degree of protection as if you shared an ethnic or racial or ancestral background and no religion in other words the federal government couldn't treat groups differently or worse just because they shared a common Faith the agency OCR that we've been discussing had been for many years declining to move forward on cases involving Jews uh SS and members of other what you might call ethn religious groups groups that have both a Rel religion but also a shared origin in a particular part of the world the notion in this doctrine that we developed in the Bush Administration but that was then later elevated by the Trump executive order on combating anti-Semitism the notion is that people need to be treated equally and that an agency that is charged with protecting students from discrimination on the basis of race color or national origin should do so even with with respect to groups that have those characteristics but also a shared Faith well yeah so actually let's let's talk about this Trump executive order uh on comenting anti-Semitism what exactly did it say and there's I've heard a lot of different discussion around this a lot on the one side criticism aot on the other side a lot of Praise how do you view it I think it was the most important policy advance that we have seen in fighting campus anti-semitism in the United States over the last several decades I would say over um over my lifetime there has been nothing as strong as the Trump executive order on combating anti-Semitism it has two pieces to it the first piece codifies this notion that we've been describing that Jewish Americans and other ethn religious groups but in particular with focused on Jewish Americans are protected by title six because of shared ethnic or ancest Al background even though Jews are also a religion and religion per se is not covered by title six that was the first piece that Jewish Americans should be treated the same as as uh as other groups the second piece was to say if federal agencies like OCR that are administering title six of the Civil Rights Act of 1964 if they receive an allegation of anti-Semitism and they're not clear on whether it's anti-Semitism or not anti-Semitism and it doesn't involve protected speech under the First Amendment but it rises to the level that if it is discriminatory it's sufficiently severe or pervasive that it would create a violation of title 6 in order to figure out is this anti-Semitism or not agency officials should consider the most widely adopted definition of anti-semitism in the country or in the world it's the so-called Ira or intern Holocaust remembrance alliance definition of anti-semitism it's a little bit too long to try to recite from memory but it is the definition that has now been embraced by 2third of our states also by dozens of countries around the world it is uh it is an international standard it is the only definition that has been embraced and adopted in this way and the Biden Administration has not rescinded it so by using this Trump executive order agency officials provide transparency to how they're looking at anti-Semitism and they make it clear that when there's a close case they are going to use the same approach the same standards that's used by most of our states and most of our allies abroad how do you explain you know what's been happening on campuses of since basically since October 7th well it's been horrific hasn't it and on October 7 Kamas invaded Israel engaged Ed in widespread systemic Slaughter of Israeli Jews and others engaged in widespread rape of large numbers of women tortured many people kidnapped others desecrated corpses did all of this in a mass coordinated effort that is one of the most significant atrocities that we've seen in decades certainly the greatest mass murder of Jews Shin the Holocaust we did not know on October 7 everything that we now know but we knew enough we knew that they were the murders we knew about torture we had evidence of the rape and yet immediately after that happened and before Israeli Defense Forces entered Gaza there were in streets of major cities around the world and on campuses of dozens of universities around the United States widespread protests not against the the torture not against the rape not against the murder but in favor and against the victims I don't think we have ever seen this I don't think that we have seen large scale protests aligned with a terrorist organization that had just engaged in Mass atrocities over the coming weeks and months others join these protests and some claim to be protesting against uh the Israeli Defense Forces actions and response to the atrocities and yet we cannot forget we cannot deny that this movement began immediately and in a large scale way in defense of massive human rights violations this should tell us something about what's wrong right now on college campuses well Kenneth this has been a fascinating interview a final thought as we finish up 2024 is an important year for uh civil rights in a lot of different ways let me just take campus anti-Semitism the Biden Administration has promised now for its entire four years to issue a regulation that administers the Trump executive order on combating anti-Semitism it missed its first self-imposed deadline which was about three years years ago and gave itself a new self-imposed deadline which it missed and it missed another as well the current self-imposed deadline is December of 2024 I don't know many people who believe that they're actually going to to meet that I believe that the incoming Trump Administration will act in a forceful and muscular way to address the various forms of discrimination that President Trump has identified throughout the the campaign I think that that's very good I think it's very important we don't need to wait for it to happen to start taking actions locally in our communities and around the country but to the extent that a problem remains when President Trump is inaugurated I think we will see strong action by the incoming Administration well Kenneth Marcus it's such a pleasure to have had you on pleasure is mine thank you thank you all for joining Kenneth Marcus and me on this episode of American thought leaders I'm your host Yan Kell [Music]